Kauss v. Rohner , 172 Pa. 481 ( 1896 )

Opinion by

Mr. Justice Fell,

While much of the testimony intended to establish a contract to compensate the plaintiff for the services she rendered the decedent consisted only of the proof of loose declarations of testamentary intention, there was enough that was direct and positive to justify the submission of the question of the existence of a contract to the jury. Proof of the contract did not entitle the plaintiff to recover the value of the estate: Hertzog v. Hertzog, 34 Pa. 418; Graham v. Graham’s Executors, 34 Pa. 475; Pollock v. Ray, 85 Pa. 428. But it overcame the presumption arising from the existence of the family relation that the services were performed without the expectation of reward, and enabled her to recover on a quantum meruit the reasonable worth of her services. As the right to compensation did not mature until the death of John Kauss, the statute of limitations interposed no bar to the recovery of any part of the claim.

It was not error to permit the plaintiff to testify. A witness called by the defendant had testified to a conversation which occurred in his presence between the plaintiff and the decedent touching the contract relation between them. In contradiction of this testimony the plaintiff was allowed to state what this conversation was. Her examination was limited to the conversation which had been detailed by the preceding witness, and no new matter was introduced. By the act of June 11, 1891, a surviving party is made competent to testify to any relevant matter which occurred before the death of the other party, if such matter occurred between himself and a person who is living and who testifies against him at the .trial, “ or if such relevant matter occurred in the presence or hearing of such other living and competent person.” To this should be added the construction given in Roth’s Estate, 150 Pa. 261, that the surviving party is not competent unless the living witness has been called, and then to such matters only as he has testified to. The act applies to conversations or occurrences which took place in the presence or hearing of the witness who has testified and whom it is proposed to contradict: Thomas v. Miller, 165 Pa. 216. See also Krumrine v. Grenoble, id. 98. The living witness to the conversation between the decedent and the plaintiff having testified, the plaintiff was competent to contradict him and to state her recollection of what was said.

The plaintiff’s claim was not without substantial merit, but she was entitled to recover, if at all, only upon her strict legal standing, and to the extent of the market value of the services which she performed. The case belongs to a class requiring the most thorough scrutiny, and in which jurors should be carefully instructed and restrained. In this respect we feel constrained to hold that the charge of the learned judge was inadequate and to some extent misleading. That portion of the charge which is the subject of the seventeenth assignment of error set up a wrong standard by which to estimate her wages, and instead of confining the jury to the proper grounds for recovery tended to incite them to follow their own inclinations and to do what the decedent had failed to do, give the plaintiff practically the whole estate. In addition to board, clothing, care, education and full maintenance the verdict gives her wages at a rate exceeding three dollars a week from the time she was six years old, and for no reason more apparent or convincing than that given by one of her principal witnesses to justify his estimate of the value of her services, that “ she ought to have it.” This'result could not have been reached by any fair calculation, and we assume that it would not have been if proper instructions had been given.

The standard was the market value of what she had furnished, and to this the jury should have been confined by clear, distinct and guarded instructions; and they should not have been permitted under color of wages to have found the value of a bargain which . she could not, and was not attempting to enforce.

The seventeenth assignment of error is sustained, and the judgment is reversed with a venire de novo.